Op-Ed: Indiana Can Rein in Federal Regulators

December 5, 2013

“If the actions of government officials lead citizens to conclude that those officials are no longer meaningfully bound by the law, then citizens will rightly conclude that neither are they.” — Michael F. Cannon of the Cato Institute testifying before the U.S. House Judiciary Committee, Dec. 3, 2013, on the Patient Protection and Affordable Care Act.

by Roman Buhler

The authors of our Constitution would be astonished at the arrogance and growing power of 21st-century federal regulators. And in his State of the Union address, Barack Obama told Americans he would essentially rule by regulation.

But states can act to rein in federal abuse of power, and Indiana Gov. Mike Pence has signed a “10th Amendment” law to restore his state’s rightful Constitutional role. Further, there is growing support among state leaders for a “Regulation Freedom Amendment” to require that Congress approve major new federal regulations. The effort is led by a founder of the Federalist Society, former Indiana Rep. David McIntosh, and two former governors, George Allen of Virginia and Bob Ehrlich of Maryland.

The Regulation Freedom Amendment would empower one quarter of the members of the U.S. House or Senate to require that Congress review and approve any proposed regulation before it could go into effect. The Regulation Freedom Amendment is similar to a measure proposed by Indiana Rep. Todd Young that passed the U.S. House with bipartisan support. But the Senate is not likely to allow a vote, and Barack Obama is unlikely to sign it.

An alternative strategy would empower two-thirds of the states to force Congress to propose the Regulation Freedom Amendment. In fact, four times in American history, pressure from the states has forced Congress to propose a specific amendment. Congress fears the power of states to call a convention and, to avoid that possibility, has historically approved the amendment that states proposed.

A 10th Amendment-based Indiana law written by Senate President David Long and Speaker Brian Bosma has made that state power even stronger. As “faithful elector” laws ensure presidential electors keep their word, Indiana’s Faithful Delegate Law ensures that convention delegates could be immediately replaced if they exceeded their limited authority.

If such laws were enacted in a majority of states with a majority of the U.S. population, a majority of delegates at any convention could be required to limit that convention to an up-or-down vote on a specific Constitutional amendment.

Thus empowered, two-thirds of the states could give Congress a simple choice: Propose the amendment that states want or be forced to call a convention that is strictly limited to an up-or-down vote on that amendment. Congress would almost certainly propose the amendment.

With these laws in place, a bipartisan coalition of two-thirds of the states might well force Congress to propose an amendment to rein in federal regulators. Indeed, federal regulators are exceedingly unpopular among state legislators. Few legislators would risk being labeled a rubber stamp for federal regulators when the alternative is to make regulators more accountable to elected representatives of the people.

The 28 states with Republican majorities in their legislatures, plus states in which Republicans might win new majorities with states in which moderate Democrats don’t want to be identified as defenders of federal regulators, could form a strong enough coalition to force Congress to act.

Even the threat of such a coalition could deter many of the most onerous regulations. The authors of the Constitution would not only approve of such a political tactic, they planned it this way.

Roman Buhler, director of the Madison Coalition, wrote this for the Indiana Policy Review Foundation. Contact him at Rbuhler@MadisonCoalition.Org.

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When the Supreme Court held in the 1793 case Chisholm v. Georgia that a state could be sued in federal court under Article III of the Constitution, this amendment was rapidly adopted. It provided that states could only be sued in state courts.

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